Lamb v. Pierce , 113 Mass. 72 ( 1873 )

MORTON, J.

The deed under which the defendant justifies conveyed an interest in the land, and would be valid against a subsequent purchaser, if duly recorded, or if such purchaser when he took his deed had actual notice thereof. This is decided in the recent case of White v. Foster, 102 Mass. 375, in which the tenant claimed under a deed which is, in legal effect, like the deed in this case. As stated in that case, “growing timber constitutes a part of the realty, is parcel of the inheritance, and like any other part of the estate may be separated from the rest by express reservation or grant, so as to form itself a distinct inheritance,” and “ when so separated and made a distinct estate, it has the incidents of real property so long as it remains uncut, and the rules which govern the title and transfer of such property must apply.” Therefore, as the conveyance, under which the defendant claims, is of a freehold estate, the provisions of Gen. Sts. e. 89, § 3, apply to it, and as it was not recorded, it is not valid against the plaintiff unless he had “ actual notice thereof.”

It appears by the report that there was evidence tending to show that the plaintiff had notice that the wood had been sold to the defendant, and that he had two years to cut and remove it, but “ there was no evidence that the plaintiff, at the time oi receiving his conveyance, had any knowledge or notice of the deed to the defendant.”

We think this statute requires that the plaintiff must be shown to have had actual notice that there had been a conveyance to the defendant of the estate purchased by him at the auction sale. The provision we are now considering was first enacted in the Revised Statutes, c. 59, § 28. Since then it has been uniformly held that no implied or constructive notice of an unrecorded deed would give it validity against a subsequent purchaser. Therefore proof of open and notorious occupation and improvement, or of other facts which would reasonably put a purchaser upon inquiry, are not sufficient, but the party who claims under an unrecorded deed must prove that the subsequent purchaser had actual knowledge or notice of such deed. Pomroy v. Stevens, 11 Met. 244. Parker v. Osgood, 8 Allen, 487. Pooley v. Wolcott, 4 Allen, 406. Sibley v. Leffingwell, 8 Allen, 584.

The case at bar falls within these decisions. The report finds that the plaintiff had no notice of the deed to the defendant. His knowledge that the defendant had bought the wood at auction, without proof that he had notice that the sale had been consummated by a. conveyance to the purchaser, is not sufficient. The statute requires proof of actual notice of the deed. It follows that, according to the terms of the report, the verdict must be set aside. ' New trial ordered.